01974304
01-07-2000
Barbara J. Kelly, Complainant, v. Janet Reno, Secretary, Department of Justice, Agency.
Barbara J. Kelly v. Department of Justice
01974304
January 7, 2000
Barbara J. Kelly, )
Complainant, )
) Appeal No. 01974304
v. ) Agency No. D1873578
) DJ1873571
Janet Reno, )
Secretary, )
Department of Justice, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning her complaints of unlawful employment discrimination on the
bases of sex (female), age (d.o.b., November 11, 1952), and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the final agency decision is AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
she was discriminated against on the above-referenced bases when her
supervisor, the alleged discriminating official (ADO) in this case,
(1) required her to take annual leave when she left work to buy a
work-related going away present for a co-worker; (2) failed to give
her documentation for "accountable property requests for 9 millimeter
pistols" during a meeting; (3) did not invite her to a luncheon meeting;
(4) treated her less favorably than similarly situated employees regarding
the allocation of office space and training; (5) gave her an unfavorable
job performance evaluation; and (6) made an inappropriate comment to
her after she filed her first EEO complaint.
PROCEDURAL HISTORY
Complainant filed a formal complaint on December 16, 1994, in which she
raised (1) - (5) of what has been identified as the issue presented.<2>
On June 20, 1995, she filed another formal complaint in which she raised
issue (6).<3> The agency accepted both complaints for processing, and
at the conclusion of its investigation, issued a combined final decision
finding no discrimination. This appeal followed.
FACTUAL BACKGROUND
The evidence in the investigative files reveals that, at the time of
the alleged incidents of discrimination, complainant was employed by the
agency as a Supervisory Contract Specialist in the Procurement Section
of the Federal Correctional Institution.
Regarding the first issue (i.e., being required to take annual leave when
she left work to buy a work related gift for a co-worker), complainant
stated that one of her co-workers was being transferred to another unit
and, therefore, she (complainant) wanted to give her (co-worker) a going
away party. When complainant mentioned this to the ADO, he stated that
he did not feel comfortable allowing her to use official government
time to prepare for a party. At that point, she reminded him that he
had allowed other employees to do it in the past.<4> The ADO responded
that those other employees had not requested as much time as she was
now requesting.<5> When she asked him for guidance, he never responded
so complainant took five hours of annual leave. According to the ADO,
complainant's request was denied not on the basis of sex and age, but
because she wanted to leave work at 9:00 a.m., while the other employees
to which she referred left work at approximately 2:00 in the afternoon
to pick up the food for a co-worker's retirement party. He stated that
leaving at 9:00 in the morning for 6.5 hours is very different from
leaving at 2:00 in the afternoon for three hours. He further stated
that if the complainant had requested that she be allowed to leave in
the afternoon for two or three hours, her request probably would have
been granted.
In addressing the second issue, complainant stated that the ADO failed to
provide her with documentation for a request for nine millimeter pistols.
She believes this was discriminatory because her two counterparts<6>
were provided this information. According to her, when she asked for her
copy of the documentation, the ADO told her that she had to get it from
someone else. The ADO does not remember this particular incident.<7>
He did state, however, that if it did happen, it certainly was not based
on age and sex, particularly since all three of his assistant department
heads, i.e., complainant and her two counterparts, were females between
the ages of 41 and 46.
As for the third issue, complainant stated that on September 14,
1995, the ADO invited one of her subordinates (female) to a luncheon.
When extending the invitation, he indicated to the subordinate that he
would be inviting three other employees (all females), one of which
was complainant. According to complainant, she and one of the other
persons, were never invited. According to the ADO, he invited some
of the employees from complainant's section to attend lunch with him
in the commons area. He stated that, in an effort to "get around and
see people more," he decided to eat lunch in the commons area once a
week and anyone who wanted to join him was more than welcomed. He also
stated that because complainant and her staff never joined him, he went
to a few of her subordinates and asked them to have lunch with him.
According to him, complainant was not invited directly because she was
not in her office when he extended the invitations. He contended that
he asked the people he invited to extend the invitation to complainant.
The people that he invited, however, denied that he asked them to inform
complainant about the luncheon. Several employees, including witnesses
for the complainant, testified that the ADO had an open lunch once a
week and that all employees were encouraged to attend.
Regarding the fourth issue (i.e., being treated less favorably than
similarly situated employees regarding the allocation of office space
and training), complainant stated that one of her subordinates was being
transferred so she had plans to utilize the now vacant office space.
After formally requesting the space, complainant's request, along with
the request of two others,<8> was denied by the ADO. Instead, the
ADO decided to split the office between complainant's section, i.e.,
Contracting and the section of the other requesting parties, i.e.,
Budget and Accounting. Complainant believes that if the vacant office
space had been in another supervisor's area, that supervisor would have
been allowed to utilize it. The ADO stated that his decision was based
on his desire to appease both sections, particularly since there was
already some tension between the two. In addressing the failure to
train portion of this issue, complainant stated that employees in the
other two sections (Budget/Accounting and Trust Fund), both of which are
supervised by women over 40, 41 and 46 to be specific, were accorded
training opportunities that her employees were not. She contended
that at the end of fiscal year 1995, there were some surplus funds
that the supervisor of the Budget/Accounting office was responsible
for disseminating. Complainant stated that the Budget/Accounting
supervisor informed the Trust Fund supervisor that she (Trust Fund
supervisor) could use some of the funds to train some of her employees.
According to complainant, when she asked the Budget/Accounting supervisor
why she had not been contacted regarding the availability of training
funds, she (the Budget/Accounting supervisor) claimed to have forgotten.
The ADO contended that while he does remember the availability of extra
funds for equipment and other supplies at the end of fiscal year 1995,
he does not remember anything regarding training. He does remember,
however, asking complainant if she had requested any new equipment
and/or supplies and her response indicated that she did not know anything
about it. According to him, upon discovering that complainant was not
aware of the extra funds, he contacted the Budget/Accounting supervisor
and informed her to make certain that all section heads were contacted
and made aware of the fiscal situation.<9>
In addressing the fifth issue, the complainant stated that, to date (May
1, 1995), she had not yet received her annual performance evaluation
for the past fiscal year that ended March 31, 1995. Prior to that, she
did not receive her first quarter performance logs in a timely manner.
According to her, quarterly performance logs are supposed to be received
no later than ten days after the completion of the quarter. That being
the case, she should have received her performance logs for the first
quarter of the rating period (April - June, 1994) by July 10, 1994.
Instead, she received a document on October 12, 1994 in which two
quarterly rating periods were lumped together. In addition, complainant
believes that the October 12 document contained some unjustified entries.
Specifically, she pointed to two "minimally successful" entries; one for
"making [the ADO] look bad" during a project for which she volunteered,
and another for not processing a document quickly enough.
The ADO stated that complainant's performance ratings are not based on
anything other than her penchant for circumventing established procedures
and clearly rejecting his orders. The ADO's supervisor stated that he
disagreed with one of the ratings that the ADO gave complainant. He also
stated, however, that he does not believe that the erroneous rating was
based on gender or age, but rather on a personality conflict.<10>
In addressing the final issue of her complaint, complainant stated
that the ADO harassed her after she filed her first EEO complaint.
She stated that the ADO approached her a day after her initial EEO
investigation began and made negative comments to her about their
relationship. She recalled that the ADO told her that she needed to
obey the proper chain of command. According to her, a few weeks later,
during a confrontation with the ADO regarding one of her employees who
was out on sick leave, the ADO said, "The problems that we are having we
would not be having if we were two males. . . . common knowledge that
women hold grudges. . . You just brought up an incident that referred
to the past and ask any woman in [this department] if women don't hold
grudges." The ADO confirmed that he told complainant that there are
difference between the way men and women handle disagreements.
ANALYSIS AND FINDINGS
Sex and Age Discrimination
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). See, Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases); see also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(applying McDonnell Douglas to age cases). First, complainant must
establish a prima facie case of discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802. Next, the agency
must articulate a legitimate, nondiscriminatory reason(s) for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, then the complainant must prove,
by a preponderance of the evidence, that the legitimate reason proffered
by the agency was a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983).
The Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Regarding the first issue,
the agency contends that complainant's request to use official government
time to plan for a co-worker's going away party was denied because
complainant wanted to use too many hours and wanted to leave at the
start of the business day (9:00 a.m.) as opposed to in the afternoon.
Regarding the second issue, the agency denied that complainant was not
issued documentation for "accountable property requests for 9 millimeter
pistols." The agency pointed out that if complainant was not given the
documentation, it certainly was not based on age and gender since her
two counterparts (who, like complainant, are female and between the
ages of 41 and 46). In addressing the third issue, the agency contended
that the luncheon, to which complainant referred in her complaint, was
held every Wednesday and every employee under the ADO's supervision was
allowed, in fact encouraged, to attend. Regarding the being denied
office space and training incidents, the agency contended that the
office space that complainant requested was also requested by two other
supervisors from another section and, in an effort to not increase the
tension that already existed between the two sections, it decided that
the two sections should share the space. As for the training (made
possible by the availability of extra funds), the ADO stated, and the
complainant confirmed, the Budget/Accounting supervisor (female over 40)
was charged with disseminating the extra funds. He also stated that
he did not know that employees under complainant's supervision were
denied training while others were not. In addressing the fifth issue,
the ADO stated that complainant's performance rating had nothing to do
with her age or gender, but rather her refusal to follow instruction
and established procedures. The ADO's supervisor stated that while he
disagreed with one of complainant's rating (he thought it should have
been higher), he did not think the inadequate rating was based on age
and gender because the ADO supervised two other females over the age of
40 and never had problems with them.<11>
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In the present case, complainant has failed to meet that burden.
The evidence that complainant submitted to support her claim of age
and gender discrimination is not strong enough to establish that the
agency's articulated reasons were pretextual. Regarding the first issue,
complainant failed to show that other employees were granted from five
to six and a half hours of official government time to leave the work
premises and prepare for a co-worker's party. Regarding the second,
third, fourth, and fifth issues, complainant failed to submit evidence
which would indicate that someone outside of her protected group was
treated more favorably than she. In each instance, the evidence she
provided indicated that two employees, both within her protected group
with respect to age and sex, was treated better than she was. While such
proof may indicate that there are some problems between complainant
and the ADO, it certainly does not indicate that she was discriminated
against on the bases of age and sex. As such, we find that complainant
did not prove that the reasons articulated by the agency constitute an
effort to mask discriminatory animus.
Harassment - Reprisal
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
In the present case, complainant alleged six incidents of harassment;
five based on age and sex, one (i.e., inappropriate remark after she
filed her first formal complaint) based on age, sex, and reprisal.
Because the Commission has determined that the first five incidents were
not based on age and sex, supra, those issues will not be revisited here.
The sixth issue, the inappropriate remark about women holding grudges
longer than men, did not rise to the level of harassment. Instead,
it was nothing more than a mere offensive utterance and, as such, not
severe enough to trigger a Title VII violation.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we hereby AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE
FILED WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30)
CALENDAR DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR
DAYS OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. �1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
January 7, 2000 Carlton M. Hadden,
DATE Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at WWW.EEOC.GOV.
2 Sex and age were the alleged bases.
3 Sex, age and reprisal were the alleged bases.
4 According to complainant, the Controller had previously allowed an
Hispanic male (unspecified age) and two females, both under 30 years
of age, to use three hours of official government time to prepare for
a co-worker's retirement party.
5 Complainant's affidavit indicated that she requested five hours. The
affidavit of ADO indicated that she requested six and a half hours.
6 Both are female and over forty.
7 One of complainant's counterparts confirmed that she (complainant)
was not given the documentation and told to get it from someone else;
the other one, like the ADO, does not remember the incident.
8 These two requests came from members of the Budget and Accounting
Office. One of the members was the female supervisor (age 46),
one of complainant's two counterparts, and therefore a comparator,
of the Budget/Accounting Office. The other member (male, age 29), was
employed as a Supervisory Operating Accountant under the supervision of
the Budget/Accounting supervisor.
9 The Commission notes that, for some reason, the investigator failed
to ask the Budget and Accounting supervisor about the "surplus
funds/training" incident.
10 Most of the witnesses in this case, including complainant, seemed
to indicate, some more indirectly than others, that the problems between
the ADO and complainant stemmed from a personality conflict.
11 The sixth issue, i.e., inappropriate comment, will be addressed under
an harassment analysis.